OLC In The News–Same-Sex Benefits

Some months back, Chief Judge Kozinksi ordered the Administrative Office of US Courts to submit the health-insurance election of a Ninth Circuit employee to the insurance carrier although the employee sought to cover her same-sex spouse; he construed the Defense of Marriage Act as capable of a construction that would permit that course, which was to be preferred to the alternative reading under the principle of constitutional avoidance because, he said, it avoided serious constitutional questions under the Equal Protection Clause. Eugene has blogged on that order.

In the Post today, Joe Davidson has an article entitled “OPM defies order on same-sex benefits” reporting that the Office of Personnel Management, which oversees federal benefits, on Friday told the attorney for the same Ninth Circuit employee that the agency would not implement Judge Kozinski’s order, apparently because of advice received from the Office of Legal Counsel. The article quotes a statement from OPM General Counsel Elaine Kaplan that “OPM must administer the FEHBP [Federal Employees Health Benefits Program] in a lawful manner, and the Department of Justice (DOJ) has advised the OPM that providing those benefits would violate the so-called ‘Defense of Marriage Act.'” That must be OLC; I don’t think there’s another office at DOJ that would give such advice (and in any event, if asked, they’d turn right around and ask for OLC’s views).

As I’ve documented in other posts, the current OLC generally has been fairly timely about publishing its formal opinions on its website fairly soon after an opinion is signed (between one day and three months, which is breakneck speed by historical standards). There’s no such opinion up there yet on the subject; unless we see the opinion up there in the next month or two, it means OLC likely provided the advice informally, typically either orally or by email.  That’s not that unusual, although I would normally expect a formal opinion to be issued on such a controversial subject.

To state the obvious (as demonstrated by calling the law the “so-called” DOMA), that is a position that is contrary to the Obama Administration’s policy preferences. I don’t know anything about the merits and so won’t tender a view, but it always heartens the law nerd in me to see people sticking to principle even when it’s unpopular to do so.   (I note as an aside that this is not the first time that OLC has given perhaps unexpected advice in this area of the law.)  If OLC were going to be overruled by Attorney General Holder (as reputedly happened in with D.C. voting legislation, purportedly based on advice by the Solicitor General’s Office), I suspect it would already have happened. 

By the way, OLC alumni will be very familiar with the client agency blaming them when the agency has to dispense unwelcome news.

UPDATE:  I’ve poked around a bit, and it looks like the precise timeline went like this.  On January 13, 2009, Chief Judge Kozinski issued his original order discussed above.  On February 20, 2009, OPM directed the Administrative Office of US Courts not to process the request; a copy of that letter is available here (it’s the exhibit at the last two pages of the document). OPM said it was basing its decision on “Benefits Administration Letter 96-111” issued on November 15, 1996 (which states in relevant part that DOMA “clarifies that same-sex marriages cannot be recognized for benefit entitlement purposes under . . . FEHB”). Based on that, OPM stated that “Plans in the FEHBP may not provide coverage for domestic partners, or legally married partners of the same sex, even though recognized by state law.”

In response to that, on November 19, 2009, Chief Judge Kozinski issued another order awarding the Ninth Circuit employee, Karen Golinski, backpay to compensate her for the failure to give her insurance, and asserting authority to order OPM to comply. See p. 15575 (“Ordering enrollment is proper and within my jurisdiction because Congress intended this tribunal to be the sole forum for adjudicating complaints of workplace discrimination by employees of the Judiciary. With that responsibility must come power equal to the task.”); id. at 15576 (“OPM . . . may not disregard a coordinate branch’s construction of the laws that apply to its employees.”); id. at 15577-78 (“History reveals that Congress intended the Judiciary to have, like Congress itself, the authority to manage its own personnel and to adjudicate workplace complaints.”). He ordered that:

(3) Within 30 days, the Office of Personnel Management shall rescind its guidance or directive to the Blue Cross and Blue Shield Service Benefit Plan and any other plan that Ms. Golinski’s wife is not eligible to be enrolled as her spouse under the terms of the Federal Employees Health Benefits Program because of her sex or sexual orientation, and that the plans would violate their contracts with OPM by enrolling Ms. Golinski’s wife as a beneficiary.

(4) The Office of Personnel Management shall cease at once its interference with the jurisdiction of this tribunal. Specifically, OPM shall not advise Ms. Golinski’s health plan, the Blue Cross and Blue Shield Service Benefit Plan, that providing coverage for Ms. Golinski’s wife violates DOMA or any other federal law. Nor shall OPM interfere in any way with the delivery of health benefits to Ms. Golinski’s wife on the basis of her sex or sexual orientation.

(Emphasis added.)  He ended by stating “I authorize Ms. Golinski to take appropriate action to secure compliance with this order, such as by petition for enforcement or mandamus.”

Even after reading Ms. Kaplan’s statement, it is not completely clear to me at what point OPM sought OLC’s views: After the January 19 order, OPM’s Feb. 20 action, or the November 19 order. OPM’s Kaplan stated “after we learned of this development [which development?], we examined our options and consulted with the DOJ.”  Because the Kaplan statement was issued on Friday, December 18, the last weekday before Chief Judge Kozinski’s 30-day deadline was to run, I suspect OPM solicited the OLC advice after the November 19 order.  OPM’s statement gives some insight into OLC’s reasoning:

DOJ advised us that the order issued by Judge Kozinski does not supersede our obligation to comply with existing law because it is not binding on OPM, as it was issued in his administrative capacity, and not as a judge in a court case. Thus, this type of order does not change the existing law, which DOJ concludes prevents the enrollment.

On reflection, given the inter-branch conflict at issue here, I have to imagine that OLC issued (or will be issuing) a formal opinion.  Watch their website.

By the way, Ed Whelan has blogged a bit on this administrative/judicial distinction in connection with Judge Reinhardt’s analogous order ordering same-sex benefits for Federal Defenders.